River law: Local angler fights for river access

Dargan Coggeshall and his brother-in-law, Charlie Crawford, fishing-- illegally, some say-- on the Jackson River.

Photo courtesy Dargan Coggeshall

Several years ago, when a local angler waded into a waterway in Alleghany County, he also waded into a legal battle over property rights and public access to Virginia's rivers that has cost him $50,000 in legal fees, and counting.

Along a 14-mile stretch of the Jackson River just beneath the Gathright Dam, the cold, pure waters from the depths of Lake Moomaw, created when the U.S. Army Corps of Engineers built a dam in the late 1960s, create one of the most ideal trout habitats in the state. Indeed, a few years ago, the Jackson's reputation as an angler's paradise prompted one savvy developer to market a high-end residential golfing community along its banks, "providing privileged access to over 4-miles of private river frontage and year-round fly-fishing."

Dargan Coggeshall, a Charlottesville business owner and long-time fly-fisherman, says he discovered a spot in front of the proposed development more than two years ago. Before selling a single lot, Coggeshall says the developer had scattered No Trespassing signs along the river bank, and had even come down to the river's edge to tell Coggeshall he wasn't allowed to fish in that part of the river because it was privately owned.

Coggeshall scoffed at the idea, as a centuries-old Virginia statute deems the beds of all rivers and streams as public property for the "purposes of fishing, fowling, hunting, and taking and catching oysters and other shellfish.”

One time, Coggeshall said the developer at The River's Edge conservation development dispatched the local sheriff to the river bank.

"He checked my fishing license,"said Coggeshall,"but told the developer that I was allowed to fish on the river."

In the summer of 2010, however, Coggeshall and his brother-in-law were wading in the river when they noticed someone on shore video-taping them. It would turn out to be the developer's first property buyers, a neurosurgeon from Roanoke and his wife, who had paid $600,000 for their riverside get-away.

A few days later, Coggeshall and his brother-in-law were served warrants for criminal trespassing.

An Alleghany District Court judge dismissed the case, but the property owners and developer would fire back with a civil lawsuit, seeking $10,000 in damages from Coggeshall and his brother-in-law, claiming the riverbed in front of the development was private property, granted to them by documents issued by the King of England before the American colonies were formed.

Seriously.

What's more, there was a 3-mile stretch up river that Coggeshall's state maps told him was off limits to fishing, precisely because a 1993 Virginia Supreme Court found that crown grants had given the property owners there the right to prohibit fishing on "their" stretch of river.

This new lawsuit, however, is different.

"This is not a fishing case," says the lawyer for the developer and property owners, Roanoke attorney James Jennings. "This is a trespassing case. These men were walking on the river bottom, and my clients own the river bottom."

"Most people can't afford to challenge these kinds of lawsuits," says Coggeshall, who points out that he's had to set up a legal defense fund, Virginia Rivers Defense Fund, to wage the battle. He's received donations from outdoor apparel maker Patagonia and the Izaak Walton League, a conservation group founded in 1922.

Jennings claims to have records of a 1743 crown grant executed by the governor of Virginia on behalf of the King of England and a 1785 grant from the Commonwealth of Virginia that will show that the riverbed there is private property, and that those grants precede any right the state has to allow public access.

"These questions have been answered decades ago, even centuries ago,"says Eric Leaper, executive director of The National Organization for Rivers (NORS), a Colorado-based non-profit. "Under Federal law, if a river is navigable– that is, if you can basically float down it– then it's a public right of way. Courts through the ages have always said this."

"We have no problem with kayaks and canoes floating by,"counters Jennings. "Just don't get out and walk on the river bottom."

According to Leaper, the last word on river access rights came from the 1981 U.S. Supreme Court case Montana v. United States, in which the court ruled that the Crow Nation had no right to regulate fishing on the parts of the Big Horn River that ran through its reservation.

"It's really a non-issue,"says Leaper. "The U.S. Supreme Court is the law of the land, not someone waving around a crown grant."

Still, it's worth noting that three of the nine Justices dissented, believing the original treaty with the Crow gave them ownership of the riverbed.

As Jennings points out, in addition to having the old records of the grants, his clients pay real estate taxes on their riverbed land, and should have the right to decide who walks on it. He says the grants need to be honored by the state.

However, before the birth of the nation's roads and highways, back when rivers were used more for travel and commerce, Leaper says the concept of who owned the riverbeds wasn't even an issue. In the 1970s landowners began making claims on the ownership of river beds, as recreational use expanded along with riverside land ownership.

"Since the 1970s, courts have ruled consistently in favor of recreational use on rivers," says Leaper. "So, you own the riverbed? So what. The public has a right to the river, no matter who owns the river bed. Rivers are recreational thoroughfares."

"Not necessarily,"counters Jennings, mentioning the prohibition against fishing on that 3-mile stretch up river on the Jackson. "Ownership and its conditions are decided river by river."

Leaper thinks the prohibition against fishing on that 3-mile stretch is most definitely a violation of Federal Law.

"But who has the money to challenge it in Federal Court?" he says. "Oftentimes, landowners win by intimidation. As long as there's money to be made, as long as you can increase the perceived value of your land through this kind of legal maneuvering, it goes on, mile by mile, along every river."

26 comments

Robert January 17th, 2012 | 3:23pm

This has been a topic of great debate in Montana as well. While consensus favors the legitimacy of recreational use on rivers, cases like these still tie up the court systems, especially since many of these land owners can charge sportsmen to hunt, etc. on their land - where is the line between hunting and fishing drawn? Some land owners have gone so far as to build fences that extend into the river, but in the spirit of the "Montana Way", there are many stories of locals, including public servants, who make life pretty rough on folks who try to limit access to these areas. There are large court costs in this case, but what will the real cost end up being to all involved when it is all said and done?

1% January 17th, 2012 | 3:58pm

Yet another path whereby the wealthy benefit at the cost of the 99%.

Shouldn't the landowner be suing the developer for fraudulently misrepresenting the extent of the deed on the riverbottom?
(Oh yeah...the 1% don't attack their own kind.)

Liberalace January 17th, 2012 | 4:46pm

Do you really want to know what amazes me about this story? The Hook was so quick to insert non-related information about the wife of a former police officer (like home value, who she is and where she works) in an article, but does not divulge the name of the Roanoke neurosurgeon in the article. That is important: who is this piece of trash?
As an attorney, I'd give my right arm to have a neurosurgeon's bank account to tap into in pursuit of such a useless case.
Maybe Jennings should hire Johnathan "Psycho" Perkins, recent UVa law grad, as an intern.
R.I.P.: Joe Lis

The scary thing about this case is that if the developer and neurosurgeon are able to run the anglers into the groud (financially), we will see more and more riparian landowners pursue this civil tactic to basically seize their private section of our public waters by intimidating law abiding river users. I hope the Hook readers will support the anglers defense fund @ www.virginiariversdefensefund.org/donate

imboden January 17th, 2012 | 11:15pm

This fight has been going on for many years. There is no argument about the right to "navigate" these waters. You can canoe or kayak or tube them without disagreement. You just can't walk the river bottom. Want to fish in my front yard? Go ahead, but don't get out of your boat. Doesn't sound complicated (or argumentative) to me.

Angel Eyes January 18th, 2012 | 12:19am

It's an insult to all citizens of the commonwealth that any "Crown Grant" should have any standing whatsoever other than as regards title to property, said title subject to all state and federal law.
Among examples of where current law supercedes older legal restrictions are deed restrictions forbiding the sale of property to negroes (such restrictions and deed covenants were common and can still be found in property records archives). All of these are rendered moot by subsequent federal law and likewise there should be no question at all of any stipulations in crown grants being allowed to trump state law as regards riparian rights. After all we have been a nation independent of "The Crown" for a while now....

Caesonia January 18th, 2012 | 9:19am

I absolutely agree with you Bill. ( Don't drop dead of shock.) The tax argument to me is totally nonsense, as we we often pay taxes on property we own, but has a right of way, like a sidewalk. Or the edge of the road. I think a clear distance definition should be put in, to stop this nonsense, once and for all.

Winky Dink January 18th, 2012 | 11:58am

Caesonia,
So if I have a right-of-way for power lines on my property can anybody walk on my land? Just curious how open a right-of-way is.

bill marshall January 18th, 2012 | 12:00pm

I think that the court should look at the actual "harm" to the plaintiff. If a person is on an inner tube (legal) but he bumps his butt on a rock he is now tresspasing (illegal) the person on the shore just sees a fat guy with a sunburn and there is no measurable harm to the land. Either way he is looking at the fat guy and he accepted that possibility when he bought the place.

So if i were the judge I would dismiss with prejuduce, make the doc pay the legal costs and instruct him to get a life.

The key word is navigable. If that word were not in there then anyone could walk down any stream that went through anybodies property. But if it is navigable by boat then as long as they are accompanied by a boat, tube etc then they should be able to get out and walk it. That is a normal part of boating and sometime nesasary to unsnag a fishing line etc.

Can a boat use a pole to push on the bottom?

Just fix the law and be done with it.

Caesonia January 18th, 2012 | 1:10pm

"So if I have a right-of-way for power lines on my property can anybody walk on my land? Just curious how open a right-of-way is."

I never implied any such thing, I am saying that the tax argument is weak, as to terms of a right of way. Having owned property that did have a legal right of way - alleyway - the complain is nonsense, and nothing more than an attempt by someone very affluent to privatize public assets. IN fact, I think you would find that now unused alleyways have more justification in being reverted to the title owners than a navigable river.

This dance by special interests to turn public assets into privatized operations via all sorts of shenanigans, or incredibly long 'leases' has to be drawn to a close.

Caesonia January 18th, 2012 | 1:11pm

Again, I agree with you Bill.

Webster52 January 18th, 2012 | 1:32pm

My family owns a home and land on the Jackson they have allready fought this battle in court. Recreation users are welcomed to float the river but that does not give them the right come on their property. We constant have to problem of people coming on shore and causing damage.

Oyster January 18th, 2012 | 2:46pm

To invert the issue- who are the Doctor and his neighbors going to sue when their (?) riverbed is tested for potential toxins from immediate area run-off from their overly green lawns and super green golf course? There is a high probability that water run offs from their chemical lawns will enter the watershed and destructively host on the river's bottom thus eliminating another wonderful area of nature. Moral of the story-Becareful for what one wishes (sues)??? Life can have strange outcomes from poor judgement with equally poor legal advice.

Gasbag Self Ordained Expert January 18th, 2012 | 4:34pm

I can't understand why readers don't open linked documents to determine who's who in a story like this. It took me just a few minutes to learn the names of all involved.

Liberalace, you really need to sharpen your Internet skills. :)

Liberalace January 18th, 2012 | 7:32pm

Two things GSOE:
1. Give me a break...I am working on a rigged Commodore 64.
2. In a story of this length, why not just write "Dr. Vinnie Boombotz, a Roanoke neurosurgeon...?" There was plenty of room to add the name without even adding an extra line of type. The link does not have ads on it or anything that would pay The Hook extra for hits...and a lot of folks do not trust opening a link.
R.I.P.: Clarence Williams III

cookieJar January 19th, 2012 | 2:06am

"Caesonia,
So if I have a right-of-way for power lines on my property can anybody walk on my land? Just curious how open a right-of-way is."

Easements and rights of way are different things. Consult Wikipedia when it comes back on line.

Angel Eyes January 19th, 2012 | 3:04pm

The easement has a specific beneficiary, the utility company, and they and their agents are allowed access for maintenance. The right of way too has specified beneficiaries, the dominant tenement, whose members may cross your land. Exceptions would be public rights of way which an alley typically is or maybe it would be a beach access right of way.
An easement is not the same thing as a right-of-way, though they both are encumbrances on your exclusive property rights.

reality bites January 20th, 2012 | 8:40am

Navigable does not mean a person can float down it in pursuit of recreation. It means if the rivers can be navigated for commerce. A waterway is deemed navigable if you can float a barge on it, float logs down it in order to bring them to market, etc.

Recreational navigation by a fat man on a tube doesn't enter into the argument; however, as a gentleman of considerable girth who is prone to overexposure to the sun when on a tube, I do like the example.

Roger January 20th, 2012 | 12:41pm

The 1973 regulatory definition of "navigable waters" for the SPCC rule was published in the Federal Register on December 11, 1973 (see 38 FR 34165) and reads as follows:

The term "navigable waters" of the United States means "navigable waters" as defined in section 502(7) of the FWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce

omgitspaul January 20th, 2012 | 2:15pm

@ Oyster...perhaps the good doctor would be liable for "his" river bottom contaminating the water shed. Would the doctor and other homeowners be liable for cleaning up "their" potion of the river bed should it become contaminated by fertilizer run-off? It could easily lead to contamination downstream of water and sediments the King never gave them grant to. I'm more curious than anything...

Carrboro Pete January 20th, 2012 | 5:59pm

Homeowners can"t "win by intimidation" if a mass of people refuse to be intimidated. I'd recommend a mass river walk every weekend as soon as the water gets warm enough. Even the rich docs can't afford to sue everybody. Lawsuits cost them money too.

What should concern all of the readers about this case, regardless of on what side of the King's grant issue you fall, is that a properly (fishing) licesensed citizen can be sued for wade fishing in a navigable river/fishery that was created by a dam built w/ tax payer dollars (which continues to do feasibility studies on the enhancement of downstream recreational opportunities w'/ tax payer dollars), that was originally stocked with fish paid for by tax payer dollars, that is promoted by the state as a recreational gem, that is filled with access ramps funded by and maintained by tax payer dollars, which is patrolled by game and fishery law enforcement officers that are paid for with tax payer dollars....and the state (via the Attorney General) refuses to enter the case to assert its ownership of the property across all which makes this resource possible. The AG claims to be a protector of the Constitution of Virginia, yet he won't defend the property held in trust by the state, for the use of the Common. I guess global warming is more threatening to our Commonwealth than seizure of our vital common resources. Help the anglers if you can.

Eeli January 22nd, 2012 | 3:00pm

they are saying they do not mind you floating on the water. why? I wonder how easy it is to get a boat of any kind on that part of the stream or would you have to trespass to reach it.also this is the one percent attempting to intimidate the 99%. so yes occupy the damn stream! also think about contributing to these guys defense fund.